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The Meaning of Property: Freedom, Community, and the Legal Imagination
Yale University Press, 2010
240 pp., 50.47
The Command Economy of Freedom
Do good fences really make good neighbors? From Winstanley and Rousseau to Marx and Kropotkin, a lineage of modern thinkers has suspected that "property is theft," as Proudhon declared. Even some of the most revered ideologists of property have been unsure of its legitimacy. Take Sir William Blackstone, the eminent 18th-century English jurist and the Aquinas of modern property law. In his Commentaries, Blackstone pronounced that the right of property is the "sole and despotic dominion which one man claims and exercises over the external things of the world." Yet, less than a page later, Blackstone mused that the tyranny of property depended on willful historical amnesia. "We seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title." The rights of property depend on the erasure of historical memory, a repression of the political unconscious.
Jedediah Purdy lifts the repression—but only in part, thus obscuring the memory. Now an associate professor of law at Duke, Purdy debuted over a decade ago with For Common Things (1999), a heartfelt rumination on the triumph of irony and the virtue of ardent commitment. But in this most recent book, a turgid study of property law, Purdy trades passion for pedantry, grinding out the occasional paragraph in which every sentence is capped with an endnote. To be sure, Purdy is informative, ranging over the Putney Debates of 1647, civic republicanism, John Locke, Adam Smith, legal realism, American waste law, welfare economics, microfinance, and intellectual property. But when he mangles the language with technocratic twaddle—"rational maximization of legal actors' preference satisfaction"—you really want to kill all the lawyers.
Still, Purdy aspires to help us "revise our preferences, values, and commitments." Among those "commitments" in need of "revision" is what Purdy calls "liberal property," the dominant conception of property in Anglo-American law as "sole and despotic ...